United States District Court, S.D. Georgia, Savannah Division
TORREY S. SCOTT, Plaintiff,
PENNY HAAS FREESEMANN, et al., Defendants.
ORDER AND REPORT AND RECOMMENDATION
Christopher L. Ray, United States Magistrate Judge
pro se and in forma pauperis, Torrey Scott
brings this 42 U.S.C. § 1983 action against the judge
and attorneys involved in his state prosecution. Doc. 1;
see State v. Scott, CR14-1888 (Chatham Super. Ct.)
(closed, motion for new trial pending). The Court granted his
request to pursue his case in forma pauperis (IFP),
doc. 8, and he returned the necessary forms. Docs. 9 &
10. The Court now screens the Complaint pursuant to 28 U.S.C.
§ 1915A, which requires the immediate dismissal of any
pro se complaint that fails to state at least one
Scott was convicted of murder, rape, burglary, sodomy,
kidnapping, theft by taking, armed robbery, and aggravated
assault in Chatham County in February 2016, after a trial by
jury. Doc. 1 at 1; Scott, CR14-1888. He was
sentenced to life without parole, and while his motion for a
new trial remains pending before the trial court, he has not
appealed his conviction or sought habeas relief. Doc. 1 at 2;
but see id. at 7 (titling his memorandum “Tort
Claims - State Court, Motion to Vacate Illegal Sentence
§ 17-9-4”). He has filed this action alleging that
Judge Freesemann, former Assistant District Attorney Frank
Pennington II, and defense counsel Richard Darden
“co-conspired to charge and prosecute him”
without a “true bill” of indictment. Doc. 1 at 5.
He also complains that Darden committed malpractice by
failing to call the DNA expert witnesses he'd requested.
Id. For his troubles, he seeks 35 million dollars.
Id. at 6.
lists claims of “false imprisonment, false arrest,
malicious prosecution, and conspiracy” against
defendants, and argues Judge Freesemann's
“malicious corruption” deprives her of absolute
judicial Conclusory allegations, however, fail. Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (discussing a Rule
12(b)(6) dismissal). immunity. Doc. 1-1 at 2. Apparently,
various criminal statutes “were not codified and
entered into law by the Georgia State Legislature: the
General Assembly, and therefore don't exist in the
current state as valid official laws, said statutes are void
and an offense created by them is not a crime, and a
conviction under them cannot be a legal cause of
imprisonment.” Id. at 4. He thus seeks
“that the judgment, conviction, and sentence made Feb.
26th 2016 to case #CR14-1888-JI be vacated, all charges be
acquitted and Plaintiff be discharged from false imprisonment
immediately and without further delay.” Id.
Court has an obligation to liberally construe pro se
pleadings. See, e.g., Estelle v. Gamble, 429 U.S.
97, 106 (1976); Gilbert v. Daniels, 624 Fed.Appx.
716, 717 (11th Cir. 2015) (“We liberally construe the
pleadings of pro se parties. . . .”) (citing
Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168
(11th Cir. 2014). It also has an obligation to take a
Complaint's allegations as true, at the screening stage.
See supra n. 1. Abiding by those obligations, if not
stretching them to their breaking point, the Court might
construe plaintiff's allegations as waving at claims of
false arrest or false imprisonment, malicious prosecution, or
conspiracy. Ortega v. Christian, 85 F.3d 1521, 1525
& 1526 (11th Cir. 1996) (“[a] warrantless arrest
without probable cause violates the Fourth Amendment and
forms the basis for a section 1983 claim” and
“detention on the basis of a false arrest presents a
viable section 1983 action” for false imprisonment);
see Wallace v. Kato, 549 U.S. 384, 38990 (2007)
(“false imprisonment ends once the victim becomes held
pursuant to [legal] process - when, for example, he is bound
over by a magistrate or arraigned on charges.”),
id. at 390 (once an arrestee's unlawful
detention becomes a product of legal process, his continued
custody may still be unlawful, but any damages suffered after
that point must be recovered under the “entirely
distinct” tort of malicious prosecution, “which
remedies detention accompanied not by the absence of legal
process, but by wrongful institution of legal
process.”); but see Wood v. Kesler, 323 F.3d
872, 881-82 (11th Cir. 2003) (an essential element of a
malicious prosecution claim is the termination of the
criminal prosecution in the plaintiff's favor - a
conviction and life sentence certainly don't qualify).
Scott's Complaint, however, is dead on arrival.
untimely. The statute of limitations for § 1983 claims
“is that which the State provides for personal-injury
torts.” Wallace, 549 U.S. at 387 (cite
omitted). Under Georgia law, the statute of limitations for
such claims is two years. O.C.G.A. § 9-3-33; see
Williams v. City of Atlanta, 794 F.2d 624, 626 (11th
Cir. 1986). Generally, the statute of limitations for §
1983 claims begins to run when facts supporting the cause of
action are or should be reasonably apparent to the claimant.
Brown v. Ga. Bd. of Pardons & Paroles, 335 F.3d
1259, 1261 (11th Cir. 2003) (per curiam); see
also Mullinax v. McElhenney, 817 F.2d 711, 715 (11th
Cir. 1987) (conspiracy claims are also subject to O.C.G.A.
§ 9-3-33's two-year clock). Scott knew about these
defects, at the latest, by the time he filed his first motion
for a new trial with the Superior Court. Scott,
CR14-1888 (Feb. 26, 2016 motion). This Complaint was not
signature-filed until January 8, 2019 - nearly three years
later. He's out of time.
Scott has sued individuals not subject to § 1983
liability under any theory. Judges, like Judge Freeseman, are
absolutely immune from civil liability for acts
taken pursuant to their judicial authority, see,
e.g., Forrester v. White, 484 U.S. 219, 227-29
(1988), even when the judicial acts are done
maliciously or corruptly. Stump v.
Sparkman, 435 U.S. 349, 356 (1978); Harris v.
Deveaux, 780 F.2d 911, 914 (11th Cir. 1986). District
attorneys too are immune from § 1983 liability where
their alleged malfeasance stemmed entirely from their
“function as advocate.” Jones v. Cannon,
174 F.3d 1271, 1281 (11th Cir. 1999) (“[A]bsolute
immunity extends to a prosecutor's ‘acts undertaken
. . . in preparing for the initiation of judicial proceedings
or for trial, and which occur in the course of his role as an
advocate for the State. . . .'”); see Imbler v.
Pachtman, 424 U.S. 409, 431 (1976); Jackson v.
Capraun, 534 Fed.Appx. 854, 859 (11th Cir. 2013)
(prosecutor entitled to absolute immunity for initiating
prosecution even if he did so with malicious intent). And
defense counsel, whether court-appointed or privately
retained, does not qualify as a state actor for purposes of
§ 1983 liability. Polk County v. Dodson, 454
U.S. 312, 318 n. 7 (1981) (“[A] lawyer representing a
client is not, by virtue of being an officer of the court, a
state actor ‘under color of state law' within the
meaning of § 1983.”); Pearson v. Myles,
186 Fed.Appx. 865, 865 (11th Cir. 2006) (court-appointed
defense counsel did not act under color of state law and thus
was not subject to liability under § 1983); Deas v.
Potts, 547 F.2d 800, 800 (4th Cir. 1976) (“A
private attorney who is retained to represent a criminal
defendant is not acting under color of state law.”),
cited in Robinson v. Bernie, 2007 WL 80870 at *1
(S.D. Ga. Jan. 8, 2007). Simply put, even if Scott had timely
pursued his claim he could not sue any of these defendants.
not barred by the defendants' various immunities or the
statute of limitations, finally, plaintiff's claim is
barred by Heck v. Humphrey, 512 U.S. 477 (1994) to
the extent he seeks to “vacate” his
“illegal” state conviction and be
“release[d] from false imprisonment.” Doc. 1 at 7
& 16. A challenge to the fact or duration of a
prisoner's confinement - regardless of the label the
plaintiff places on the action - is properly treated as a
habeas corpus claim, McKinnis v. Mosley, 693 F.2d
1054, 1057 (11th Cir. 1982), and those claims simply are not
cognizable under § 1983. Wilkinson v. Dotson,
544 U.S. 74, 78 (2005). Because Scott's claims would
plainly impugn the validity of his conviction, which has not
been invalidated or otherwise set aside, they are barred
under Heck. See e.g., Pritchett v. Farr,
592 Fed.Appx. 816, 817 (11th Cir. 2014). Plaintiff's only
recourse is a habeas action, and before he can bring a
federal habeas action, he must first exhaust his available
state remedies through either a direct appeal or a petition
for state collateral relief. Wilkinson, 544 U.S. at
79 (federal “habeas corpus actions require a petitioner
fully to exhaust state remedies, which § 1983 does
not”); 28 U.S.C. §§ 2254(b), (c).
summary, and for myriad reasons, plaintiff's Complaint
against defendants Penny Haass Freeseman, Richard Darden, and
Frank Pennington II should be DISMISSED.
Although the Court sees no apparent basis upon which the
deficient claims could be amended, plaintiff's
opportunity to object to this Report and Recommendation
within 14 days affords him an opportunity to resuscitate
them. He may submit a Second Amended Complaint during that
period if he believes it would cure the legal defects
discussed above. See Willis v. Darden, 2012 WL
170163, at * 2 n.3 (S.D. Ga. Jan. 19, 2012) (citing Smith
v. Stanley, 2011 WL 1114503, at * 1 (W.D. Mich. Jan. 19,
2011)). To state a claim, however, plaintiff must be able to
both plead the requisite elements of a § 1983 claim
and identify a defendant who is not immune from
it is time for plaintiff to pay his filing fee. His PLRA
paperwork reflects $0 in average monthly deposits over the
six month period prior to the date of his Prison Account
Statement. Doc. 6. He therefore owes no initial partial
filing fee. See 28 U.S.C. § 1915(b)(1)
(requiring an initial fee assessment “when funds exist,
” under a specific 20 percent formula). Plaintiff's
custodian (or designee) shall therefore set aside 20 percent
of all future deposits to his account, then forward those
funds to the Clerk each time the set aside amount reaches
$10.00, until the balance of the Court's $350.00 filing
fee has been paid in full.
R&R is submitted to the district judge assigned to this
action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this
Court's Local Rule 72.3. Within 14 days of service, any
party may file written objections to this R&R with the
Court and serve a copy on all parties. The document should be
captioned “Objections to Magistrate Judge's Report
and Recommendations.” Any request for additional time
to file objections should be filed with the Clerk for
consideration by the assigned district judge.
the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district
judge. The district judge will review the magistrate
judge's findings and recommendations pursuant to 28
U.S.C. § 636(b)(1)(C). The parties are advised that
failure to timely file objections will result in the waiver
of rights on appeal. 11th Cir. R. 3-1; see Symonett v.
V.A. Leasing Corp., 648 Fed.Appx. 787, 790 (11th Cir.
2016); Mitchell v. United States, 612 Fed.Appx. 542,
545 (11th Cir. 2015).
ORDERED AND ...